[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Notices]
[Pages 38354-38355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15368]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-HQ-MB-2018-0090; FF09M22000-212-FXMB1231099BPP0]
RIN 1018-BD76


Economic Analysis for Proposed Regulations Governing the Take of 
Migratory Birds

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; document availability.

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SUMMARY: We announce the opportunity to review and comment on two 
economic analysis documents prepared during development of the proposed 
rule to revoke the January 7, 2021, rule governing the prohibitions on 
incidental take under the Migratory Bird Treaty Act. This document 
announces the availability of an initial regulatory flexibility 
analysis and a regulatory impact analysis for public review.

DATES: Submit comments by August 19, 2021.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov/docket/FWS-HQ-MB-2018-0090/document. You may submit 
a comment by clicking on ``Comment.'' Please ensure you have located 
the correct document before submitting your comments.
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-MB-2018-0090, U.S. Fish and Wildlife Service, 
MS: JAO/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, at 202-208-1050.

SUPPLEMENTARY INFORMATION:

Background

    On January 7, 2021, the Service published a final rule defining the 
scope of the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq.) as 
it applies to conduct resulting in the injury or death of migratory 
birds protected by the MBTA (86 FR 1134) (hereafter referred to as the 
``January 7 rule''). The January 7 rule codified an interpretation of 
the MBTA set forth in a 2017 legal opinion of the Solicitor of the 
Department of the Interior, Solicitor's Opinion M-37050, which 
concluded that the MBTA does not prohibit incidental take.
    Following Council on Environmental Quality regulations that 
implement the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), the Service prepared a final environmental impact statement 
(EIS) for the January 7 rule: ``Final Environmental Impact Statement; 
Regulations Governing Take of Migratory Birds,'' available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-14242). The 
alternatives analyzed in that EIS cover the effects of interpreting the 
MBTA both to include and exclude incidental take. We issued a record of 
decision based on the final EIS. The Service also prepared a regulatory 
impact analysis (RIA) to support the January 7 rule, available on 
http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-14241). That RIA 
analyzed the economic impacts of three alternatives: A No Action 
Alternative--Retain the existing legal interpretation under M-37050 
that the MBTA excludes incidental take; Alternative A--Promulgate 
regulations that define the scope of the MBTA to exclude incidental 
take; and Alternative B--Promulgate regulations that define the scope 
of the MBTA to include incidental take.
    On May 7, 2021, the Service published in the Federal Register (86 
FR 24573) a proposed rule seeking public comment on whether the Service 
should revoke the January 7 rule, which defined the scope of the MBTA 
as it applies to conduct resulting in the injury or death of migratory 
birds protected by the MBTA. This proposed rule is available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090 (https://www.regulations.gov/document/FWS-HQ-MB-2018-0090-18943). For the May 7, 
2021, proposed rule, we modified the analysis in the RIA for the 
January 7 rule, given that the January 7 rule went into effect on March 
8, 2021. The regulatory impact analysis presented for the proposed rule 
revises the alternatives to reflect the current baseline with the 
January 7 rule in effect. While the proposed rule does not itself 
propose codification of a new regulation that interprets the MBTA to 
prohibit incidental take, the effects of the removal of the January 7 
rule are substantially similar to those described in Alternative B of 
the RIA for the January 7 rule. Revoking the January 7 rule would have 
the effect of reverting the government's interpretation of the MBTA to 
prohibit incidental take consistent with longstanding agency practice 
prior to publication of M-37050, subject to the exercise of enforcement 
discretion and the applicable judicial precedent in a given 
jurisdiction. Consistent with Alternative B, the Service will consider 
further steps to implement the MBTA consistent with an interpretation 
that it prohibits incidental take if it finalizes the proposed 
revocation rule.
    The Regulatory Flexibility Act of 1980 (RFA; 5 U.S.C. 601 et seq.) 
requires agencies to evaluate the potential effects of their proposed 
and final rules on small businesses, small organizations, and small 
governmental jurisdictions. Section 603 of the RFA requires agencies to 
prepare and make available for public comment an initial regulatory 
flexibility analysis (IRFA) describing the impact of proposed rules on 
small entities unless the agency can certify under section 605(b) that 
the proposed rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. Section 603(b) of the 
Act specifies that each IRFA must contain:
    [ssquf] A description of the reasons why action by the agency is 
being considered;
    [ssquf] A succinct statement of the objectives of, and legal basis 
for, the proposed rule;
    [ssquf] A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule will apply;
    [ssquf] A description of the projected reporting, recordkeeping, 
and other compliance requirements of the proposed rule including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record; and
    [ssquf] An identification, to the extent practicable, of all 
relevant Federal rules

[[Page 38355]]

that may duplicate, overlap, or conflict with the proposed rule.
    While the Service believes that certification under section 605(b) 
of the RFA is likely appropriate in regard to the May 7, 2021, proposed 
rule and consistent with our analysis of economic impacts under the 
January 7 rule, we have developed an IRFA out of an abundance of 
caution to ensure that economic impacts on small entities are fully 
accounted for in this rulemaking process.
    The Service is making available to the public for review and 
comment both the revised RIA and the IRFA for the May 7, 2021, proposed 
rule (86 FR 24573) to revoke the January 7, 2021, rule (86 FR 1134). As 
noted above, the proposed rule is also available in the same docket for 
reference when reviewing the RIA and IRFA. Comments on the RIA and IRFA 
and any additional comments on the proposed rule will be addressed in 
the final rule.

Public Comments

    You may submit your comments and materials by one of the methods 
listed in ADDRESSES. We will post your entire comment-- including your 
personal identifying information--on http://www.regulations.gov. If you 
provide personal identifying information in your comment, you may 
request at the top of your document that we withhold this information 
from public review. However, we cannot guarantee that we will be able 
to do so. Comments and materials we receive will be available for 
public inspection on http://www.regulations.gov.
    Authority: This document is published under the authority of the 
MBTA and section 603 of the RFA.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-15368 Filed 7-19-21; 8:45 am]
BILLING CODE 4333-15-P